Working Group on Arbitrary Detention and Julian Assange

Opinion No. 54/2015 concerning Julian Assange (Sweden and the United Kingdom of Great Britain and Northern Ireland), distributed 22 January 2016

On 3 February 2016, Wikileaks tweeted to its three million followers that if the UN's Working Group on Arbitrary Detention (WGAD) decided against a complaint by Julian Assange that he was being arbitrarily detained in the Ecuadorian Embassy, he would hand himself over to the UK authorities. Two days later WGAD found in his favour.

WGAD is a body of five academic experts tasked with the investigation of cases of detention imposed arbitrarily or otherwise inconsistently with international standards. Of those five experts, one recused herself from the opinion on the basis that she, like Assange, is an Australian national. Another dissented, leaving the other three to answer two main questions in Assange’s favour: first, whether Assange had been “detained”; and if so, second, whether his detention was arbitrary, or otherwise contrary to applicable international standards.

Was Mr Assange detained?

There were three distinct episodes each said to constitute detention: first, 10 days in isolation in Wandsworth Prison; second, 550 days released on bail and under what Assange’s own lawyer, Geoffrey Robertson QC, called “manor arrest” in rural Norfolk; and third, the time spent since in Ecuador’s embassy in London.

The reasoning in respect of ‘detention’ is brief:

• WGAD begins its consideration by noting that Mr Assange has been “subjected to different forms of deprivation of liberty … as a result of both the actions and inactions” of Sweden and the UK.
• WGAD says that the initial deprivation of liberty — which was in isolation, in a prison for 10 days, and so admitted by all to be “detention” — involved both a deprivation of liberty and a denial of the right to a fair trial, which then “continued in the form of house arrest.” WGAD expresses concern that this form of detention was imposed for some 550 days (during which time Assange exhausted his appeal options in the UK).
• WGAD then concludes that “Mr Assange’s stay at the Embassy” should be considered a “prolongation” of this earlier deprivation of liberty.
• Finally, WGAD refers to its own previous finding that “placing individuals in temporary custody in stations, ports and airports or any other facilities where they remain under constant surveillance may … constitute a de facto deprivation of liberty.” So much may be accepted, but only because it begins with the premise of persons being placed in “custody.”

With that, WGAD moves on to discuss whether this detention was arbitrary, expressing concern that “the only basis of the deprivation of liberty of Mr Assange appears to be the European Arrest Warrant”. It also expresses concern that Mr Assange’s detention has been so prolonged as a result of a “substantial failure to exercise due diligence … with regard to the performance of the criminal administration”, in particular as Sweden has not progressed its investigation despite Assange’s offered support, and the state of “indefinite procrastination” of the investigation defeats both the interests of justice and those of the concerned victims. The factual bases for these conclusions, disputed by the UK and Sweden, are not clearly addressed.

The dissent

In a single-page dissent, Dr Vladimir Tochilovsky suggests that the majority decision inappropriately expands the mandate of the WGAD, emphasising that “the Working Group is not competent to consider situations that do not involve deprivation of liberty”, and that places of “self-confinement” cannot be places of detention. Beyond that statement, there is no detailed analysis of the nature of “detention”.

Commentary

Nature of detention

WGAD puts to one side whether “manor arrest” constitutes a deprivation (rather than a restriction) of liberty, but in respect of Assange’s time in the embassy there is an interesting legal question about the nature of detention. Unfortunately, WGAD does not clearly address it.

Assange’s submissions draw an analogy with a body of case law concerning immigration detention, suggesting that where a person faces a choice between ongoing detention and returning to a place of persecution, the “voluntary” nature of their remaining in detention does not prevent it being detention: where the alternative is facing persecution, there is no real choice.

That principle is unobjectionable, but in applying it one has to consider (at least) the nature of the alternative. So for example, if Assange’s stated fears of being treated in the same manner as Chelsea Manning are well founded, then it may be open to see his Ecuadorian stay as “detention”. If these fears are not well founded, and in fact the reason for remaining in the embassy is to avoid arrest for sexual assault (putting to one side that Assange has not been charged), then it is hard to see how anyone could see a deprivation of liberty in any relevant sense. (An alternative approach may be to concede both cases to be detention, and then throw all of the work on the question of arbitrariness.)

Failing to discuss the reasons for being in the embassy, however, sidesteps the question.

Right to asylum

Assange also makes a curious argument concerning the status of diplomatic asylum, essentially to the effect that once Ecuador had granted him asylum, the UK was obliged not to prevent his exercise of that right, ie. that the UK must allow him safe passage to Ecuador.

Despite WGAD’s implicit sympathy for the idea it is open to serious doubt, not least of all because the well-known 1949 Asylum case before the International Court of Justice expressly found no such obligation existed.

Rather than decide the issue, the panel suggests that the grant of asylum and Assange’s fears of persecution “should have been given fuller consideration” by the UK and Swedish authorities.

The jurisdiction of WGAD

The dissent raises a concern that this decision “raises serious questions as to the scope of the mandate” of WGAD on the basis that Assange was not “detained” and therefore WGAD does not have jurisdiction to consider the matter. Expressing this in terms of the mandate of WGAD is a curious approach – such concerns would seem to arise in every case where a panel member disagrees with another’s conclusion that a person has been arbitrarily detained

What’s next?

On 25 March, the UK government officially responded to the decision, requesting that WGAD review its “deeply flawed” opinion. The panel’s next session begins on 18 April 2016, at which point we might hear more from all sides.

The full text of the decision can be found here.

Doug Porteous is a solicitor at King & Wood Mallesons.